The Digest of EEO Law is a quarterly publication of EEOC's Office of Federal Operations (OFO).

Carlton M. Hadden, Director, OFO

Donald Names, Director, OFO's Special Services Staff

Digest Staff

Editor: Arnold Rubin

Writers: Robyn M. Duponte, Arnold Rubin, Gerard Thomson, Aina Watkins

Available in accessible formats for persons with disabilities. The Digest is now available online through EEOC's homepage at www.eeoc.gov. If you wish to receive a copy in print, you must send a request, in writing, to Arnold Rubin, EEOC, Office of Federal Operations, 1801 L Street, N.W., Washington, D.C. 20507.

Abuse of Process Found. The Commission found that the complainant engaged in an abuse of the EEO process such as would warrant dismissal of his complaint. Complainant asserted that he was subjected to discrimination when he was not considered for employment. According to the record, complainant initially filed a formal complaint in 1993, with regard to the denial of his requests for reinstatement to employment. The Commission noted that, since that time, complainant has received 30 appeal decisions regarding the denial of reinstatement, and the issue was considered by the United States District Court, and the Court of Appeals for the Eighth Circuit. The Commission found that, rather than seeking relief from discrimination, complainant made a concerted attempt to retaliate against agency officials when he filed the instant complaint. Specifically, complainant filed repeated complaints against the same agency officials, raising claims similar or identical to those on which he had already received a decision. In addition, the Commission found that complainant was overburdening the EEO process. Walker v. United States Postal Service, EEOC Appeal No. 01A05028 (July 20, 2001), request for reconsideration denied, EEOC Request No. 05A11062 (March 4, 2002).

Failure of Agency to Appeal Administrative Judge's (AJ's) Decision Works as Ratification. An EEOC AJ found that the agency discriminated against the complainant because of his race (African-American) when he was decertified as an Air Traffic Controller and reassigned to another facility. The agency issued a final order adopting the EEOC AJ's finding of discrimination. However, in its final order, the agency declined to fully implement the AJ's order of remedies, in particular the AJ's award of $75,000.00 in compensatory damages, which the agency stated that it was appealing. However, the agency failed to file an appeal from the AJ decision with the EEOC. The Commission noted that its regulations required that if an agency does not fully implement the decision of an AJ, it must simultaneously file an appeal with the EEOC's Office of Federal Operations, and append a copy of the appeal to its final order. The Commission found that the agency's failure to file an appeal was not obviated by its statement in its final order that it "appealed" the AJ's decision. The Commission concluded that the agency's failure to file an appeal resulted in its ratification of the AJ's decision. Accordingly, the agency was ordered to provide the relief as set out in the AJ's decision, including the award of compensatory damages. Knight v. Department of Transportation, EEOC Appeal No. 01A33172 (December 30, 2003).

Across the Board Reduction Sustained. The complainant in this case alleged discrimination on the bases of race, color, disability, age and reprisal concerning a number of agency actions over a two-year period. The EEOC affirmed an EEOC AJ finding of retaliation concerning some of the challenged agency actions. In her appeal, the complainant challenged the AJ's 20% reduction of attorney's fees. The Commission noted that the complainant was not successful on all of her claims, and that in general attorney's fees may not be recovered for work on unsuccessful claims. The Commission found that the AJ's fee award accurately reflected the overall successful effort complainant put forth in proving reprisal. Assuming it was true that complainant's claims were not easily separable, the Commission found that the AJ's 20% across-the-board reduction was reasonable given that complainant was successful on only a part of her complaint. Blinick v. Department of Housing and Urban Development, EEOC Appeal No. 07A20079 (February 3, 2004).

Agency Not Liable for Back Pay During Period Petitioner was Self Employed. In an earlier decision, the EEOC found that the complainant had been discriminated against on the basis of his race (Black) when he was not selected for a Legal Technician position. The order for relief included placement in the position and back pay. In this petition for enforcement, the complainant/petitioner argued that the agency had incorrectly denied him back pay for a period of time during which he was self- employed. The Commission denied the petition, and concluded that there was no evidence that petitioner attempted to mitigate his damages. In this case, petitioner voluntarily resigned from a position in the field for which he had been trained, and in which he was earning a higher wage than he would have had he been hired by the agency, in order to open a small business. Petitioner elected to remove himself from the job market and, as such, did not attempt to mitigate his damages. Beaton v. Department of Justice, EEOC Petition No. 04A30044 (January 13, 2004).

Complainant Fails to Demonstrate Commonality; Complaint Must be Processed as Individual Complaint or Dismissed. The complainant filed a class action on behalf of a purported class of African-American female employees who were allegedly discriminated against in a variety of agency actions, including promotions, assignments and training. An EEOC AJ issued a decision denying class certification. In affirming the decision to deny class complaint certification, the Commission found that, with the exception of race and sex, the class agent had failed to identify facts common to the class as a whole. The Commission noted that, where a class complaint is dismissed, the agency's final order must inform the agent that the complaint is being filed on that date as an individual complaint of discrimination and will be processed accordingly, or that the complaint is also being dismissed in accordance with the Commission's regulations. In this case, the AJ's decision, which became the agency's final order, did not address complainant's individual complaint. Accordingly, EEOC ordered the agency to process complainant's complaint as an individual complaint. Blue, et al. v. Department of Defense, EEOC Appeal No. 01A30926 (January 5, 2004), request for reconsideration denied, EEOC Request No. 05A40407 (February 25, 2004).

Class Certification Proper. Complainant's formal complaint asserted that the agency's application of its merit evaluation system, which imposed a 10% cap on managers receiving a "far exceeds" rating, resulted in female postmasters being denied the opportunity to be eligible for and receive a "far exceeds" merit rating. An AJ subsequently certified a class of all female postmasters employed in 1999. The Commission modified the definition of the class to encompass: female postmasters whose performance exceeded expectations but received a "met expectations" rating due to the 10 percent cap. The class complaint, as modified, was remanded to an EEOC District Office for processing. Holmes, et al. v. United States Postal Service, EEOC Appeal No. 07A20020 (October 27, 2003).

Commission Awards $90,000.00 in Nonpecuniary Damages. Complainant, who ultimately retired from the agency on disability, claimed that the agency failed to reasonably accommodate her medical conditions (chronic urticaria, dermatographism, and formaldehyde allergy). Specifically, the agency did not allow her to telecommute, nor did it grant her request to assign her to a work area that met her physician's requirements. An AJ found that the agency discriminated against complainant on the basis of disability when it denied her reasonable accommodation. The AJ also found that the agency had failed to make a good faith effort to accommodate complainant, and as a result was liable for compensatory damages. In its examination of the appropriate amount of damages to award, the Commission noted that complainant, her husband, and close friends testified that she experienced emotional distress; her relationship with her husband deteriorated; she became withdrawn and suffered lowered self-esteem. In addition, complainant's physician testified that her symptoms were mild prior to her arrival at the agency, and that she had never suffered a pattern of illness prior to her arrival at the agency. Her physician stated that he had been frustrated by the agency's failure to accommodate the complainant's condition, and that if it had complied with his recommendations to do so, complainant's symptoms would have improved. As to the duration of the harm, the physician noted that the symptoms were most severe for a 1-2 year period in 1997-98, but that they were ongoing, and continued into the year 2001. Gamez v. Social Security Administration, EEOC Appeal No. 07A20129 (October 27, 2003), request for reconsideration denied, EEOC Request No. 05A40247 (January 5, 2004).

Complaint Must Be Signed by Complainant or Attorney. It is not sufficient that a formal EEO complaint be signed by complainant's non- attorney representative. The Commission advised the agency to request that complainant sign the complaint. If he failed to do so, the agency could dismiss the complaint for failure to comply with the applicable EEOC regulations. Arellano v. United States Postal Service, EEOC Appeal No. 01A34803 December 12, 2003).

The following summaries briefly discuss Commission findings of discrimination and remedies as applicable.

Discrimination Based on Age.

Applying the substantial evidence standard to the AJ's finding of facts, the Commission reversed the agency's final order and found that complainant had been discriminated against based on age (61), when she was not selected for either of two temporary Legal Assistant vacancies. The AJ had found that complainant's qualifications were plainly superior to those of the selectees (ages 44 and 29, respectively) and found not credible the agency's reasons for its actions. Finally, the AJ had concluded that the agency failed to show that complainant would not have been selected even absent a discriminatory animus. By way of remedies, the AJ had ordered the agency to retroactively promote complainant with back pay, interest, and benefits. Yablon v. Social Security Administration, EEOC Appeal No. 07A20096 (June 25, 2003).

Discrimination Based on Disability Failure to Provide Reasonable Accommodation.

The Commission found that the agency had failed to provide complainant with reasonable accommodation for her disability (bilateral chronromalacia of the patella with arthritis in both knees) in connection with her request to have a ramp built so that she could perform her job without having to climb steps. Complainant stated that the only function of her position that she could not perform was the climbing. EEOC found complainant to be a qualified individual with a disability since she could otherwise perform the essential functions of her position and was substantially limited in the major life activity of climbing. The Commission noted that an agency is obligated to provide reasonable accommodation for any limitations resulting from a disability. EEOC stated that the limitation that is the basis of the accommodation request need not itself be substantially limiting. As long as the limitation is a consequence of a disability covered under the Rehabilitation Act, the request must be granted absent an agency showing of undue hardship.

In this case, the Commission found the agency failed to meet its burden when it failed to provide evidence that installing a ramp posed an undue hardship. EEOC rejected the agency's actions of reassigning complainant twice to positions within her medical restrictions, but at apparently undesirable locations. EEOC noted that reassignment is the accommodation of last resort, and should be employed only after it has been determined that: (1) there are no effective accommodations that would allow the employee to perform the essential functions of her position; or (2) all other reasonable accommodations would pose an undue hardship. The Commission ordered the agency to provide complainant with the opportunity to return to her bid assignment, after participating in the requisite interactive process with complainant to determine if there was an effective accommodation, which would allow complainant to perform her job without an undue hardship. EEOC also ordered the agency to advise complainant of her right to submit objective evidence of compensatory damages. Coe v. United States Postal Service, EEOC Appeal No. 01A20972 (August 11, 2003).

Disability Discrimination Complainant Regarded As Disabled and a Direct Threat.

Complainant, who had type-1 insulin- dependent diabetes mellitus since age 12, applied for the position of Special Agent, with the agency's Drug Enforcement Agency (DEA), and was made a tentative offer subject to successfully completing the application process, which included a medical examination. At the time of his application (late 1997), complainant had been employed since 1995 by a police department in Arkansas. He had also been serving, for about one year, as an undercover narcotics detective, assigned to a task force that operated in two counties. As part of the task force, complainant conducted surveillance and was subjected to adverse working conditions, including 50-60-hour work weeks. In addition, he was assigned to a DEA task force operating in his area, and he claimed that he performed all the duties of a Special Agent without any accommodation or difficulty.

A Public Health Service Physician in Arkansas examined complainant and recommended him for employment, sending his medical records to a Health Services Unit in Washington, D.C., for final review. However, a reviewing contract physician questioned complainant's suitability for the position and asked to have complainant's personal physician provide more detailed information. Complainant's physician, an endocrinologist, wrote that complainant had never been treated in the emergency room or missed work due to his illness and that he was currently taking four shots of insulin a day. The DEA's Chief Medical Officer informed complainant that he was medically disqualified due to his condition and medication schedule. Although complainant offered to reduce his insulin regimen to two shots a day as he had successfully done in the past, he was informed that this was not acceptable because of the potential risk to complainant of future medical complications associated with diabetes. Complainant filed an EEO complaint, and the agency, in its FAD, found no discrimination, noting that both agency doctors were concerned with the risk of a hypoglycemic event, which could jeopardize complainant's life as well as the lives of agents who served with him.

On appeal, the Commission reversed the FAD and found that the agency regarded complainant as being substantially limited in the major life activity of eating. EEOC noted that both agency physicians emphasized their belief that complainant needed a sterile environment and a regular schedule, which would enable him to eat and take his shots on time. The Commission also found complainant to be a qualified individual based, in part, on his work history in law enforcement.

EEOC found that the agency failed to sustain its burden of showing that complainant was a direct threat to the safety of himself or others, by posing a significant risk, i.e., high probability of substantial harm. The Commission found that the reviewing physicians had engaged in generalized assumptions about complainant's condition, and preconceived notions about how his condition would impact his current health and what the future consequences would or could be. EEOC found that the agency had failed to conduct an individualized assessment and take into account complainant's medical and work histories. EEOC further found that agency officials had failed to follow the agency's own guidelines regarding applicants who had effectively performed investigative law enforcement. As a remedy, the Commission ordered the agency to place complainant in the hiring process at the point at which the process stopped, and to investigate complainant's entitlement to compensatory damages. Harrison v. Department of Justice, EEOC Appeal No. 01A03948 (July 30, 2003).

Hostile Work Environment Based on Gender.

The Commission affirmed an AJ's finding that complainant was discriminated against based on sexual harassment and sex-based harassment. The AJ noted that the agency tolerated the use of sexist comments and jokes in the workplace that included a coworker's reference in writing to menstrual cycles; a written joke about PMS; and a photograph showing horses mating, which was put in complainant's mail slot. The AJ also considered a one-time comment made by a coworker who called complainant a "selfish b..ch." The AJ found that management was aware of the conduct and failed to promptly take remedial action to cure or correct the conduct. EEOC found that these unwelcome incidents, taken as a whole, were sufficiently severe or pervasive to alter the conditions of complainant's employment and create an abusive working environment. The Commission ordered the agency to pay complainant attorney's fees and costs of over $15,000.00; nearly $12,000.00 in pecuniary damages for recorded medical expenses; and $31,000.00 in nonpecuniary damages for stress resulting from the discrimination. EEOC also ordered the agency to consider disciplining complainant's supervisor, who had been identified as being responsible for the discriminatory acts. Hiebert v. Department of Transportation, EEOC Appeal No. 01A05253 (May 30, 2003). Cf. Archie v. United States Postal Service, EEOC Appeal No. 01A11588 (August 4, 2003) (agency not liable for sexual harassment by coworker (CW) where the agency conducted an immediate and thorough investigation; disciplined CW after determining that he had harassed complainant; permitted her to take leave; and assured complainant that CW would never work in the same facility as she).

Discrimination Based on National Origin, Sex, and Retaliation.

Complainant was not promoted to a Supervisory Criminal Investigator position, in favor of a selectee who was outside her protected groups (Hispanic, female, protected activity). The Commission drew an adverse inference due to the failure of the agency to provide the investigator with the names of the agency officials involved in rating and ranking the candidates for the "best qualified list" (BQL) despite repeated requests. EEOC further found that the agency had failed to meet its burden of articulating a legitimate explanation for its failure to put complainant on the BQL. Finally, the Commission found that the agency had failed to meet its burden of demonstrating that it would not have selected complainant even absent discrimination. Accordingly, the Commission ordered the agency to offer complainant the position at issue with back pay, interest, and other benefits. The issues of attorney's fees and costs, as well as compensatory damages, were remanded for a hearing. Castillo v. Department of Homeland Security, EEOC Appeal No. 01A22854 (November 4, 2003).

Discrimination Based on Race and Color.

The Commission affirmed the AJ's finding that the agency had discriminated against complainant on the bases of race (African- American) and color (black) when a Caucasian employee was placed non-competitively during an office-wide reorganization into a GS-12 Supervisory Military Personnel Management Specialist position. As part of the remedies ordered, the Commission directed the agency to retroactively promote complainant to the position at issue or a substantially equivalent position with back pay and benefits. On appeal, EEOC also modified the AJ's order that the responsible management official be restricted from involvement in employment decisions until she received EEO training. The Commission noted that, while training was appropriate, the AJ's order was clearly intended to be a form of discipline. The Commission noted that it was EEOC's practice to advise agencies to consider disciplining managers who had engaged in unlawful discrimination, rather than ordering discipline. The Commission also awarded complainant attorney's fees and costs of nearly $18,000.00, and $35,000.00 in non-pecuniary compensatory damages. Jennings v. Department of the Army, EEOC Appeal No. 07A20034 (April 29, 2003). See also Blinick v. Department of Housing and Urban Development, EEOC Appeal No. 07A20079 (February 3, 2004) (the Commission noted that, while its regulations state that each agency shall take appropriate disciplinary action against employees who engage in discriminatory practices, EEOC cannot discipline or order the discipline of employees directly).

Discrimination Based on Retaliation. The Commission found that complainant was subjected to retaliation for her prior EEO activity when she was denied leave requests. Specifically, EEOC found that management knew of her prior EEO activity and subjected complainant to harsher treatment and instigated procedures with complainant in mind and aimed at disadvantaging her. The agency, through its managers, subjected complainant to a hostile and retaliatory work environment that tainted each of the leave-related actions taken by agency officials towards her. As part of the relief awarded, the Commission ordered the agency to take appropriate steps to have the harassing retaliation against her stop in her current position by removing complainant from the supervision of the responsible management officials. Kinnard v. Department of Veterans Affairs, EEOC Appeal No. 01A04694 (April 29, 2003), request for reconsideration denied, EEOC Request No. 05A30835 (August 28, 2003).

Right to See a Union Steward. The complainant alleged that he was retaliated against when his supervisor had denied his request to see a shop steward. The Commission found that the allegation failed to state a claim, and that a complainant should not use the EEO complaint process to raise a matter more appropriately brought pursuant to the collective bargaining agreement. The proper forum for complainant to pursue a remedy for this claim, the Commission stated, is through the grievance process, as this is a matter that requires a determination of the application of the parties' Collective Bargaining Agreement (CBA). Mitchell v. United States Postal Service, EEOC Appeal No. 01A34572 (December 11, 2003), request for reconsideration denied, EEOC Request No. 05A40351 (February 3, 2004). See Jadeja v. United States Postal Service, EEOC Appeal No. 01A31742 (October 16, 2003) (the right to go to a union is an issue more appropriately handled in the collective bargaining, not the EEO, process). See also Hayes v. United States Postal Service, EEOC Appeal No. 01A34923 (December 9, 2003) (denial of access to agency official on two occasions to conduct union business is not cognizable for EEO purposes).

Request for Official Time to Act as EEO Representative. The Commission found that complainant lacked standing to challenge the agency's denial of official time for him to act as an EEO representative for a former coworker at another agency. EEOC noted that such a claim lies with the aggrieved, not his or her representative. Owen v. Social Security Administration, EEOC Appeal No. 01A35197 (December 30, 2003).

Claim Against the Office of Inspector General (OIG) Dismissed. Complainant alleged harm from the actions of an OIG agent during the course of an investigation. The Commission stated that it had previously held that statements made during the course of an OIG investigation do not form the basis of an actionable claim, and were a collateral attack on the investigation. The Commission affirmed the agency's dismissal for failure to state a claim, finding that the proper forum for such matters lay not with the EEO process but with the OIG. Stickevers v. Department of Veterans Affairs, EEOC Appeal No. 01A32970 (December 30, 2003).

Church Affiliation. A claim of discrimination based on church affiliation sets forth a justiciable claim, based on religion, under Title VII of the Civil Rights Act of 1964. Trimble- Gee v. Department of the Treasury, EEOC Appeal No. 01A34916 (December 30, 2003).

Comments Made During a Progress Review. Complainant alleged that she was discriminated against on the bases of race and color when she received undesirable comments during a performance feedback session. The Commission affirmed the agency's dismissal for failure to state a claim, stating that progress reviews are proposed personnel actions that do not, without further action, render an employee aggrieved. The Commission also found that the various comments complainant purportedly received were insufficient to state a claim of harassment. Zellars v. Department of the Air Force, EEOC Appeal No. 01A34449 (November 21, 2003), request for reconsideration denied, EEOC Request No. 05A40327 (January 29, 2004).

Complainant claimed that he was subjected to disability discrimination when his former supervisor made unauthorized disclosures of confidential medical information to various agency facilities, which then denied him employment. In his evaluation of complainant, the supervisor wrote that he would not recommend complainant for rehire unless his medical condition was resolved. The Commission noted that complainant failed to establish that he was an individual with a disability, as there was no evidence that he had or was regarded as having, a condition that substantially limited a major life activity. Nevertheless, the Commission found that the supervisor's statement disclosing the nature of complainant's impairment (plantar fascitis) violated the Rehabilitation Act, since documentation of an individual's diagnosis or symptoms is confidential medical information. The Commission ordered the agency to remove all documentation containing medical information from complainant's work folder, as well as provide training for the responsible management officials. Gianikos v. United States Postal Service, EEOC Appeal No. 01A21992 (October 16, 2003), request for reconsideration denied, EEOC Request No. 05A40208 (January 22, 2004).

Being Named as a Responsible Management Official Does not Constitute Protected Activity. Complainant alleged reprisal discrimination when he was denied a higher level detail and career advancement. The Commission noted that complainant's claim of reprisal was based solely on his status as the individual named as the responsible management official in another employee's EEO complaint. The Commission noted that, without more, complainant's complaint did not set forth a claim of retaliation. Chesney v. United States Postal Service, EEOC Appeal No. 01A24401 (October 27, 2003).

The Commission strongly supports the settlement of complaints at all stages of the EEO process.[1] The Commission's regulations governing the processing of federal sector complaints of discrimination provide that any settlement agreement knowingly and voluntarily agreed to by the parties, reached at any stage of the complaint process, shall be binding on both parties.[2] The Commission has held that a settlement agreement constitutes a contract between the employee and the agency, to which ordinary rules of contract construction apply.[3] The Commission has further held that the face of the agreement best reflects the understanding of the parties.[4] It is the intent of the parties as expressed in the settlement agreement, and not some unexpressed intention, that controls the agreement's construction.[5]

Oral Settlement Agreements

EEOC regulations require that a settlement agreement be made in writing, and be signed by the parties.[6] This requirement is consistent with the principles of contract law. Nevertheless, the Commission has, on occasion, found settlement agreements to be valid and enforceable when they are entered orally into the record in the presence of an Administrative Judge, and transcribed by a court reporter.

In Opfer v. Department of Commerce,[7] the parties entered into a settlement agreement on the record before an Administrative Judge, whereby the agency agreed to pay complainant $100,000.00 in compensatory damages, restore a percentage of the leave taken by complainant during a two-year period, and provide complainant with a scooter, in exchange for complainant's agreement to withdraw all outstanding EEO complaints. The Administrative Judge noted that the agreement was placed into the record, and was binding on the parties. Subsequently, the parties were unable to reduce the agreement to writing due to a disagreement over the agency's boilerplate non-disclosure clause. Citing its decision in Acree v. Department of the Navy,[8] the Commission noted that it has only upheld the validity of an oral settlement agreement in one type of situation, that is, when a verbal agreement is entered during a hearing before an Administrative Judge, as evidenced by a hearing transcript. Applying the decision in Acree, the Commission found the agreement to be binding on the parties, stating that the hearing transcript evidenced the intent of the parties, and reducing the agreement to writing was a mere formality, since the terms of the agreement were clearly ascertainable and agreed to by the parties.

Alternatively, the Commission, in Harris v. United States Postal Service,[9] found that a purported oral settlement agreement was invalid. Complainant had asserted that the parties entered into an oral settlement agreement regarding two EEO complaints, which provided for the payment of $60,000.00. The Commission stated that the agreement was not reduced to writing, and that there was no hearing transcript or equivalent document on which to bind the parties. The Commission noted that a document, which complainant stated was faxed to him by the agency, was merely a proposal to settle, and did not evidence a final agreement.

Consideration

One additional requirement for a valid settlement agreement is that there be consideration from both parties. That is, each party must incur some legal detriment in exchange for the other party's promise. Generally, the adequacy or fairness of the consideration in a settlement agreement is not at issue, as long as some legal detriment is incurred as part of the bargain. If one party incurs no legal detriment, however, the Commission may find the agreement void for lack of consideration.

In Tamura-Wageman v. Department of the Army,[10] for example, the settlement agreement provided that, in exchange for the complainant withdrawing her complaint, the agency would allow the complainant the opportunity to file a grievance related to a counseling statement she received, and that complainant's former supervisor would treat her with dignity and respect, not discuss the counseling statement with her current supervisors, and not subject her to retaliation. The Commission found that the agreement was void for lack of consideration. Specifically, the Commission stated that the agreement did not provide any consideration for the withdrawal of the underlying complaint. The agency acknowledged that filing a grievance was a right afforded all employees. Thus, the agreement did not provide complainant with any benefit to which she was not already entitled.

Similarly, the Commission found the settlement agreement in De La Garza v. United States Postal Service[11] to be void for lack of consideration. The agreement provided that, in exchange for the withdrawal of the complaint, the Manager of Injury Compensation would obtain copies of EEO and grievance decisions which complainant indicated provided him with certain hours and days off. The Manager would then communicate with other management officials to make appropriate changes to complainant's rehabilitation job offer. The Commission noted that by agreeing to comply with EEO and grievance decisions, the agency was only providing complainant with what it was already required to provide. Thus, complainant received no consideration for withdrawing his complaint.

In Wills v. United States Postal Service,[12] the parties entered into a settlement agreement which provided that the complainant would be treated with dignity and respect, all personal issues that were addressed with complainant would be conducted in a professional manner, any issues concerning complainant's employment of a personal nature would be kept personal, any disciplinary action issued to complainant would not be laid openly on the supervisor's desk, complainant would not be subjected to retaliation, all leave requests would be handled according to contract provisions, complainant would not be unreasonably denied a request to use the phone, and management would not go beyond its authority when inquiring concerning complainant's medical treatment. The Commission found that the agreement contained no consideration from the agency. The Commission stated that the agency provided complainant with nothing more than that to which she was entitled as an employee. Thus, the agreement was unenforceable for lack of consideration.

In Holland v. United States Postal Service,[13] the applicable provisions of the settlement agreement included an agreement by the parties that "threats are based upon individual perceptions," and must be taken seriously, and that management will immediately advise employees who report threats of their options and right to file an official threat assessment. The Commission, again, found that the settlement agreement was unenforceable for lack of consideration. The Commission noted that the agency had incurred no legal detriment, but had merely agreed to abide by its own policy concerning threats against employees. The settlement agreement was, therefore, void.

The parties in Washington v. United States Postal Service,[14] entered into two settlement agreements, both of which provided that complainant would not be subjected to retaliation. In addition, one of the agreements included a clause stating that one management official would assist complainant in making an appointment with her supervisor. The Commission found that both settlement agreements were void, because no consideration was provided to complainant in either agreement. The Commission noted that the agency agreed merely to treat complainant in accordance with existing statutes and regulations.

The Commission has also, in certain circumstances, voided only certain provisions of an agreement which lack consideration. In Steinmetz v. United States Postal Service,[15] the Commission noted that a provision of the settlement agreement stating that complainant's EEO file would remain confidential pursuant to applicable agency regulations and the Privacy Act, did not require the agency to do anything more than it was already legally obligated to do. Thus, that particular provision was void for lack of consideration. The Commission stated, however, that the entire settlement agreement was not invalid, given that other consideration was exchanged through separate provisions of the agreement. The Commission noted that the agreement would be reformed without the invalid provision.

In addition, in Mark v. Department of the Air Force,[16] the Commission invalidated a provision of the settlement which provided that the agency would follow applicable personnel regulations. The Commission noted that the provision failed to confer on the complainant anything more than that to which he was already entitled. The Commission stated that the agreement would be reformed, without the specified provision, given that the parties had exchanged other consideration, including a correct position description, and mid-year performance feedback.

The parties in Freeman v. Department of the Army,[17] entered into a settlement agreement which provided, in part, that the agency would recalculate complainant's disability retirement at the GS-14, step 10 level. The agency amended complainant's personnel records to reflect the higher grade level. The Office of Personnel Management, however, refused to adjust complainant's retirement, stating that it appeared that the settlement agreement was drafted in order to provide complainant with an annuity in excess of that to which he was properly entitled. In addressing the issue of breach of settlement, the Commission noted that, even if read broadly, the underlying complaints raised no claim which would support the award of a higher level position. Further, the Commission stated that an agency may apply only those remedies which a court could order if the case were to go to trial, and the relief provided to settle an EEO complaint cannot be greater than the relief a court could order under such circumstances.[18] Complainant did not assert that he was denied a promotion to the GS-14 level, and the record did not suggest that, but for the alleged hostile work environment, he would have achieved that grade. Thus, the Commission found the provision in question to be unenforceable.

The Commission may also examine subsequent, intervening events when considering whether there is a lack of consideration. In Lee v. Department of the Army,[19] the agency agreed to consider complainant for placement into a vacant Supervisory Contract Specialist position for which she was qualified during a specified period of time. The agreement classified this consideration as a "noncompetitive referral." The Commission rejected the agency's assertion that it did not breach the agreement, because the position in question was without funding during the specified period of time due to a hiring freeze. The Commission noted that while the adequacy or fairness of consideration is generally not an issue, in this case, the hiring freeze effectively made it impossible for complainant to receive the priority consideration for which she had bargained. Thus, the Commission found that the hiring freeze resulted in such an inadequacy of consideration that the agreement was void.

Other Reasons for Invalidating a Settlement Agreement

The Commission has, additionally, found the terms of a settlement agreement to be void for reasons other than a lack of consideration. In Luongo v. United States Postal Service,[20] the parties agreed that complainant would be returned to work following a medical examination at an agency medical unit. The agreement, however, also provided that complainant would continue to pursue the issue of back pay. The Commission found that there was no meeting of the minds between the parties. Specifically, the agreement raised the issue of back pay, which was inseparable from the issue of reinstatement raised with the EEO Counselor, without resolving the matter.

The Commission has also addressed the issue of whether a settlement agreement should be invalidated due to coercion or duress. In Fontecha v. Department of Defense,[21] complainant asserted that she was coerced into signing the settlement agreement, and under duress when she did so. Nevertheless, the Commission noted that the record included a sworn affidavit from complainant's representative, stating that complainant signed the agreement against his recommendation, and that she appeared to be in control, confident, and fully aware of what she was doing, rather than intimidated, exhausted or ill. Thus, the Commission found that the evidence showed that complainant knowingly and voluntarily entered into the settlement agreement.

In Escano v. United States Postal Service,[22] complainant also asserted that she was under duress when she signed the settlement agreement. The Commission noted, however, that the agreement specifically indicated that the parties signed the document without coercion. The Commission found no evidence that the agreement was void or unenforceable.

The parties in Barnett v. United States Postal Service,[23] executed a settlement agreement during a hearing before an Administrative Judge, which provided that the agency would pay complainant $150.00 and appoint her to a casual clerk position after she successfully completed the normal hiring process. The agency attempted, on two occasions, to pay complainant the $150.00 sum stated in the agreement, but complainant returned the money to the agency, stating that she wanted the agreement declared null and void. In addition, complainant failed to contact the stated facility to initiate the hiring process, despite being notified by the agency of the need to do so. On appeal, complainant contended that her attorney coerced her into signing the settlement agreement. The Commission noted that complainant corroborated that her attorney yelled at her, insulted her, refused to refund his fee if she fired him, and repeatedly told her that she had no choice but to sign the agreement. Nevertheless, the Commission stated that complainant failed to show that the attorney or the agency made a threat to cause her harm or loss if she failed to sign the agreement. In so finding, the Commission noted that the attorney's refusal to repay complainant her legal fees if she fired him was a matter governed by their contractual agreement, and could not be construed as a threat for failing to execute the agreement. In addition, the Commission stated that complainant could not claim duress by her own counsel. Thus, the Commission found that the agreement was valid and binding.

Consequences of Invalidating a Settlement Agreement

It is noted that, when a settlement agreement is invalid, and the complainant opts to have the complaint reinstated for processing, the parties would have to be returned to the status quo ante as of the time that the agreement was executed. In Jones v. Department of Defense,[24] the parties entered into a settlement agreement which provided that the agency would pay complainant back pay, compensatory damages, and attorney's fees. In addition, if complainant chose to pursue disability retirement, the agency agreed to provide written assurance that, if complainant's medical condition improved and he was able to return to work, he would be given an assignment appropriate with his background and training. Subsequently, when complainant requested that the agency re-hire him, the agency demanded that he submit a medical release. The Commission ultimately found that the provision of the agreement concerning complainant's return to work was void, as there was no meeting of the minds regarding the terms of his re-employment. Complainant was given the choice of having his complaints reinstated for processing, or specific enforcement of the agreement absent the voided provision.[25] Complainant advised the agency that he wished to have his complaints reinstated, and submitted a cashiers check in the amount of $100.00 for purposes of returning to the status quo ante. The agency returned the check to complainant, and advised him that the total amount which had been paid under the settlement agreement was in excess of $100,000.00. In response to complainant's petition for enforcement, the Commission noted that the amount specified by the agency was verified by the settlement agreement and documentation concerning the back pay calculations. The Commission stated that its prior order clearly notified complainant that if he chose to have his complaints reinstated, he must return all monies or benefits received under the settlement agreement. There was no provision for a partial payment, and complainant's attempt to tender $100.00 was ineffective to return his agreement benefits to the agency. Thus, the Commission found that, despite complainant's stated desire to have his complaints reinstated, his failure to return all of the money received precluded his effective election of that option.

Conclusion

The Commission's regulations support the settlement of EEO complaints at all stages of the administrative process. In addition, a settlement agreement made in good faith and otherwise valid will not be set aside simply because it appears that one of the parties made a poor bargain. The Commission will, however, when appropriate, invalidate an agreement, or portion thereof, which lacks consideration, or when there was no meeting of the minds between the parties.